BArtels Law

Warning: Marijuana is NOT LEGAL at the Federal Level.

There are a lot of questions but few answers surrounding Legal Marijuana in California. The landscape continues to change based on who is in office - in CA as well as federally. The best advice I can give is to be informed and cautious. Below is a status on Prop 64 and answers to some basic questions.

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Updated: Jan 1, 2017

Prop 64 Status:

All Prop 64 did was to make possessing a small amount of pot legal. It did NOT officially change the rules on selling pot. Medical marijuana is still the only legal way to buy/sell pot.

But it did set in motion the wheels to legalize the sale of pot. The CA legislature needs to establish the regulations around selling pot. It is anticipated that the rules will be very similar to selling alcohol: requires a license, three-tier maker-distribution-retail system, restrictions on who can buy, etc. It is expected to take the legislature another year (some time in 2018) before they have the system fully defined. Until then, you can not sell pot unless you have a license to sell Medical Marijuana. You can not sell pot to anyone who does not have a Medical Marijuana card. So for now - nothing really has changed, but the wheels are in motion.

To be ready for the changes coming, you will need to establish the proper business entity and history so when licenses to sell marijuana become available, you will be first in line. We anticipate that the legislature will give priority for a few years to established, local, small businesses. In order to take full advantage of this time, recommend that you form and register a business as soon as possible. so you will already be registered when licenses are made available.Contact me so we can discuss a plan for your business.

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7 Thinks You Should Know About Prop
64

1. You will have to
wait to sell recreational pot legally – but you must prepare.

Although Californians can possess and grow marijuana, people cannot
legally buy nonmedical marijuana until stores are licensed — and the state
has until Jan. 1, 2018 to begin issuing licenses. The intent is for the licenses process to be
prioritized for existing, small, local businesses - so you should prepare your
business so you are near the front of the line.

2. Any
adult can grow pot for personal use.

For those who don’t want to buy pot from special marijuana
stores, the initiative would allow adults to grow and use up to six marijuana
plants. Medical marijuana patients may still possess the quantities necessary
to meet their medical needs, even in excess of the 28.5 gram limit.

To grow more than that limit and to sell it, you will
need licenses.

3. You can only sell pot to adults

Prop 64 is the ‘Adult Use of Marijuana Act’ and allows
only people 21 and older to possess, transport and buy marijuana for
recreational use.

4. Pot products cannot be appeal to kids.

Cannabis products could not be designed to appeal to
children or to be easily confused with candy. Marijuana products also
would have to be packaged in child-resistant containers, and pot shops would be
prohibited from allowing anyone under 21 years old on their premises.

The law also bars the marketing of marijuana products to
minors, which means ads would not be able to use anything appealing to minors.

5. If you want to sell pot, you’re going to have to tell the state –
and they will check you out.

Anyone who wants to grow, process, transport or sell
marijuana must get a state license and pay a fee. The state agencies below must begin issuing
licenses by Jan. 1, 2018.

- Bureau of
Marijuana Control (inside the state Department of Consumer Affairs) for the
transportation, storage, distribution and sale of marijuana.

- Department of
Food and Agriculture for marijuana growers

- Department of
Public Health for businesses to manufacture and test marijuana products.

The license process will require a background
check. The license will be denied to
anyone with felony convictions involving violence, fraud, drug trafficking or
selling drugs to a minor.

Local governments could also require operators to obtain
a license, and restrict locations through zoning rules. Contact a lawyer in
your area to understand the local ordinances.

6. Selling pot without a license is illegal.

Selling marijuana without a license is a misdemeanor
with penalties of up to six months in jail and $500 in fines, plus possible civil
penalties of up to three times the amount of the license fee for each
violation.

7. Marijuana will be taxed by everyone.

Proposition 64 is a tax generating proposition. The state can impose a 15% tax on the retail
sale of marijuana. In addition, it can add a cultivation tax on growers
of $9.25 per ounce for flowers and $2.75 per ounce for leaves.

Cities and counties also can (and will) impose their own
taxes.

You must pay these taxes
- so you will need to build them into your pricing structure.

6. Do I need to start paying taxes?

7. Do I need to register with the government?

We anticipate that getting a license to sell marijuana will require a license - so Yes, you will need to register with the government. Each situation is unique, but generally it would be best to form and register a business as soon as possible so you will already be registered when licenses are made available.

8. x?

Any unauthorized use of the same (or confusingly similar) trademark for similar products would be trademark infringement. The basic test is whether consumers would be likely to mistake the maker of the goods or services.

9. x?

There is no trademark police. It is your responsibility as the trademark owner to monitor for and identify any infringement. In most cases a ‘Cease and Desist’ letter from an attorney is enough to stop the infringement or trigger a discussion about licensing terms.

10. Can I license my trademark to others?

11. How do I protect my trademark outside The U.S.?

U.S. registration does not protect your trademark in other countries. International trademark protection is available on a country-by-country basis. A trademark attorney can assist with the planning and execution of international trademarks.

Note: Pursuing cases of international trademark infringement can be very complex and expensive. Only large multi-national corporations typically pursue this action. For small companies, the best strategy typically is to enforce the trademark on any imports into the US.

12. Are domain names trademarks?

No. Domain names (URLs) are internet addresses and do not typically identify the source of a product so they are not trademarks. They can become trademarks if, instead of simply being an internet address, they come to identify the product. For example, ‘Yahoo Dot Com’ is used in advertising to identify Yahoo so it can be a trademark.

13. Can someone else use my trademark in a domain name?

Yes– but only if they are using it for legitimate business purposes. This is a little confusing, but since domains are not trademarks, if the person is using the trademark for legitimate (not confusing) business purposes, they can use the mark. But they cannot just hold it hostage. In 1999, Congress passed the Anticybersquatting Consumer Protection Act, which makes it an infringement to hold someone's trademark hostage.

about Bartels Law

Bartels Law is a minority-owned sole-practioner law practice specializing in Patents, Trademarks, Business Contracts (with experience in local specialties including Winery, Vineyards and Marijuana) and Real Estate.